A stunning absolutist ‘money=speech’ ruling from Wisconsin

I had to double check several news sources when I first saw this because I could not believe my eyes. But it’s for reals, folks.

Judge Rudolph Randa from the U.S. District Court for Wisconsin in Milwaukee has issued a stunning absolutist “money=speech” ruling that is the most sweeping overreach by a federal judge in a prosecution I believe I have ever seen. (Randa was appointed to the bench in 1992 by President George H.W. Bush). It takes a lot to shock me, but this did it.

A federal judge ordered a halt Tuesday to the John Doe investigation into campaign spending and fundraising by Gov. Scott Walker’s campaign and conservative groups, saying the effort appeared to violate one of the group’s free speech rights.

In his 26-page decision (.pdf), U.S. District Judge Rudolph Randa in Milwaukee told prosecutors to immediately stop the long-running, five-county probe into possible illegal coordination between Walker’s campaign, the Wisconsin Club for Growth and a host of others during the 2011 and 2012 recall elections.

“The (Wisconsin Club for Growth and its treasurer) have found a way to circumvent campaign finance laws, and that circumvention should not and cannot be condemned or restricted. Instead, it should be recognized as promoting political speech, an activity that is ‘ingrained in our culture,'” Randa wrote, quoting from a recent U.S. Supreme Court decision.

He ordered an immediate halt to the investigation, the return of all property seized during it, and the destruction of any information and materials gained in the investigation. He told the Wisconsin Club for Growth it did not need to cooperate with prosecutors in any way.

Special prosecutor Francis Schmitz, who was leading the investigation, said late Tuesday he expects to challenge the decision by appealing to the 7th Circuit Court of Appeals in Chicago.

The investigation’s focus on Walker and the Wisconsin Club for Growth has been clear for some time, but Randa revealed investigators also were probing candidates for state Senate and that “all or nearly all right-of-center groups and individuals in Wisconsin who engaged in issue advocacy from 2010 to the present are targets of the investigation.”

Subpoenas have been issued around the country, according to the judge.

Specifically, investigators have been scrutinizing the activities of R.J. Johnson, a consultant for both Walker’s campaign and the Wisconsin Club for Growth. Prosecutors described him as a “hub” who coordinated activities for Walker’s campaign and groups such as Citizens for a Strong America, Wisconsin Right to Life and United Sportsmen of Wisconsin, according to Randa.

Milwaukee County District Attorney John Chisholm, a Democrat, launched the probe in mid-2012, shortly after the conclusion of the recall elections sparked by Act 10, which curbed collective bargaining for public workers. In the most prominent race, Walker became the first governor in the country’s history to survive a recall election.

John Doe probes are overseen by judges and allow prosecutors to compel people to produce documents and give testimony, as well as bar them from talking publicly about the investigation.

Last summer, prosecutors from Columbia, Dane, Dodge and Iowa counties agreed to join the investigation, as did the state Government Accountability Board. Shortly thereafter, Schmitz was appointed special prosecutor in the case, which is being overseen by former Appeals Court Judge Gregory Peterson.

“I really have no comment at this time,” Peterson said late Tuesday.

Wisconsin Club for Growth and one of its directors, Eric O’Keefe, filed their federal suit in February against prosecutors, investigators and Peterson, contending the investigation violates their constitutional rights to free speech and free assembly.

* * *

Prosecutors contend that the Wisconsin Club for Growth is acting as a subcommittee of Walker’s campaign — and thus must report its spending on behalf of Walker and adhere to fundraising limits, Randa wrote. He called that viewpoint “simply wrong.”

When it comes to political speech, Randa wrote, the government may regulate only “express advocacy” — that is, ads or other communications that explicitly urge people to vote for or against a candidate. But Wisconsin Club for Growth and groups like it engage in “issue advocacy” — communications that promote or denigrate candidates without coming right out and saying how people should vote.

The government can regulate express advocacy only because of the danger of “giving government an expanded role in uprooting all forms of perceived corruption which may result in corruption of the First Amendment itself,” Randa wrote.

“As other histories tell us, attempts to purify the public square lead to places like the Guillotine and the Gulag.”

Campaign finance laws can be used to prevent tit-for-tat corruption or the appearance of it, but nothing else, Randa wrote. The activities at issue in the investigation don’t rise to that level, he found.

“O’Keefe and the Club obviously agree with Governor Walker’s policies, but coordinated ads in favor of those policies carry no risk of corruption because the Club’s interests are already aligned with Walker and other conservative politicians,” Randa wrote. “Such ads are meant to educate the electorate, not curry favor with corruptible candidates.”

Randa’s ruling referred frequently to Citizens United, the 2009 U.S. Supreme Court case that found corporations can spend limitless sums in elections, and to a high court ruling last month that eliminated the overall limit on what individuals can give toward congressional races.

* * *

Randall Crocker, attorney for Special prosecutor Francis Schmitz, said in a statement that he “will carefully review the decision of Judge Randa and address with our client his responsibilities pursuant to his appointment and his options.”

Donald Downs, a professor of political science and law at the University of Wisconsin-Madison, said he would need to read the ruling before giving full comments. But the news of the ruling stunned him.

“Wow,” Downs said. “This goes beyond anything I expected.”

Downs said the case had the potential to lead to important new legal interpretations on questions of free speech and criminal prosecution.

“If the Seventh Circuit reverses (Randa), it’ll go to the Supreme Court, believe me. And they’ll take it because they’re hot to trot on these issues right now,” Downs said.

[On] Wednesday, U.S. District Rudolph Randa in Milwaukee ruled a coalition of five media groups could intervene in the case in their attempt to unseal hundreds of pages of court filings that have been blacked out. He gave all sides a week to object to making that material public.

* * *

Prosecutors in charge of the investigation appealed the decision to the federal 7th Circuit Court of Appeals on Wednesday, less than 18 hours after Randa issued it. Prosecutors are asking the appeals court in Chicago to block Randa’s order for now and allow them to keep the evidence they’ve collected.

E. Michael McCann, the former Democratic district attorney in Milwaukee County for nearly four decades, said he had never seen a federal judge intervene so forcefully to smack down a state prosecutor in the midst of an investigation.

Attention now shifts to the 7th Circuit Court of Appeals. The prosecutors told that court Wednesday that Randa’s order to permanently destroy the documents they had gathered was inappropriate because it was only a preliminary ruling. Destroying that evidence “cannot be undone” if they are ultimately allowed to continue their investigation, they argued.

* * *

In addition to the federal proceeding, there are three other lawsuits stemming from the John Doe investigation in state courts. Randa’s order is so broad as to preclude prosecutors from participating in those cases, cases in which they are named defendants or plaintiffs, the prosecutors argued in their appeal.

“It appears that active participation in matters on appeal in the state courts or any activity before the John Doe judge would be deemed contempt” by Randa, the prosecutors wrote.

In the short term, this ruling lifts the cloud hanging over Governor Scott Walker’s political ambitions to run for president. The Seventh Circuit, however, holds his fate. This case is not likely to be finally decided by the U.S. Supreme Court before the 2016 campaign is fully engaged in the latter half of 2015.

A three-judge panel of the 7th Circuit U.S. Court of Appeals in Chicago stayed U.S. District Judge Rudolph Randa’s preliminary injunction from Tuesday stopping the John Doe investigation, saying he had overstepped his authority. The appeals court ruling also said Randa cannot order prosecutors to destroy evidence they have collected in the five-county probe.

* * *

The appeals court ruling (.pdf) puts the investigation back where it was a day earlier. Technically, it remains active, but in practice it appears stalled as prosecutors wade through waves of litigation.

* * *

Also Wednesday, Randa ruled a coalition of five media groups could intervene in the case in its attempt to unseal hundreds of pages of court filings that have been blacked out. He gave all sides a week to object to making that material public.

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